The Invisible Barbecue

1. A Special Mise-en-Scene

Having mobilized its economic power beyond any previous experience, and having
triumphed in a long and sometimes uncertain war, the United States found
itself with almost unbounded opportunities for the exploitation of new
infrastructure technology across a vast geographic range. The single dominant
organization in determining the shape of the postwar economic
reorganization--and the exploitation of the new infrastructure--would be the
Federal Government itself. Its control of essential public resources, said
conventionally to be held in trust for the people, empowered it to decide the
most basic features of the new political economy: the extent of private as
against public control of the new infrastructure; the particular winners and
losers among the individuals and organizations contending for the profits of
social change; and the rules, if any, constraining the new forms of political
and economic power that change would create.

One result, perhaps predictable, was a flagrant efflorescence of political
corruption. Through more than a decade of maneuver, the wealthiest
individuals and corporations in America sought by organized and only sometimes
overtly illegal bribery of parties and officeholders to secure advantage to
themselves and destruction to their competitors. The primary desideratum was
the passage of Congressional legislation organizing the new infrastructure
under private rather than public control, while making vast free transfers of
public property into those private hands to subsidize the development. Money
flowed into the political system in quantities never before imagined. Vast
bribes were offered to legislators under various ingenious forms of
transactional camouflage. Armies of lobbyists operated on Capitol Hill,
building regional and inter-regional coalitions in support of plans the
complexity of whose details surpassed the comprehension of the legislators
themselves. But the more tangible inducements were sufficient, for the
lobbyists controlled both the money and the non-monetary facilities essential
to the legislators' political survival. The press, owned by the contending
interests and those closely associated with them, went to great lengths to
de-emphasize the story, not so much by failure to report (which could hardly
occur in such a partisan environment), as by relentless omission of background
and context. The result was a growing awareness throughout the electorate
that the Congress and Executive were being bought, but without any clear
understanding of the larger issues at stake, or a real glimpse of the future
that was being constructed for them. Instead, of course, there were the
promises: everyone would benefit from the enormous economic expansion the new
infrastructure would bring about, as competition between titans delivered
prosperity, richly expanded markets, and a new vast domain of American
economic and cultural dominance.

And so--while the people were told no more than half-truths, and the press
purveyed increasingly sophisticated justifications for the unleashing of
private rapacity on the public patrimony--the contending interests went on
buying and unbuying Congressmen, Senators, and Party Committees. In the end
there was little left to steal and no one left to buy, as in an atmosphere of
increasingly acrid but unfocused public distrust the Last Great Deal was made,
and the Presidency of the United States became the prize whose continued
possession by the party in power hinged on willingness to approve the
deal.

Any resemblance between the past and the present is of course purely
accidental. I am describing not the Telecommunications Act of 1996, but
rather the "Great Barbecue" of railroad legislation in the United States
Congress from the Pacific Railway Act of 1862 to the Texas Pacific land grant
and the Presidential Compromise of 1877.1
But any reader who has already traversed the many lengthy and erudite
contributions to this symposium, and whose mind is therefore concentrated on
current affairs, might be forgiven a sense of slightly disoriented
familiarity.

A sense of deja vu at the factual level is understandable. The
104th Congress that ended with the Telecommunications Act did began, among
other similar matters, with one of the richest men in the world offering $4.2
million as an advance against potential future book royalties to the Speaker
of the House.2 Each possessor of a VHF
television broadcast license, including the gentleman who certainly did not
publically offer a bribe to Newt Gingrich, will now receive--at no cost and
among many other benefits--another slice of the publicly-owned electromagnetic
spectrum in return for adoption of new high definition television technology.
As I write it appears that actual use of this technology may not be required
in this new portion of the spectrum.3 But
then, come to think of it, actual construction and operation of a railroad
often failed to occur once federal property had been transferred, the last
time a newly-subdued Continent was parceled out to Robber Barons.

Naturally there are differences. The global Free Trade Empire the United
States hopes to gain from the winning of the Cold War and the universal
adoption of digital communications is not the precise analog of the
agriculture and mining empire of the West, bound together by the railroads,
that emerged from the Civil War. The Union Pacific is not the Internet;
neither Collis P. Huntington nor Jay Gould was a figure of sufficient
triviality to be successfully impersonated by Rupert Murdoch; and observers of
all political persuasions will probably find it tolerably easy to distinguish
between Bill Clinton and U.S. Grant.

But I am not writing an essay about the evil and destructive consequences
of Gilded Age political corruption. For now, the point is only that we have
seen the American Republic go through major adjustments in basic political
economy before as a consequence of exploiting new infrastructural technology.
Intelligent bystanders readily perceive certain correspondences that would
justify inquiry. It is difficult, if not impossible, to avoid the impression
that there has been another barbecue going on. Which brings us to the
question I want to ask about the papers you've just read.

2. Where's the Smoke?

Perhaps it is all so obvious that mention is scarcely necessary. But in most
cities of the world--Belgrade comes to mind, for example--it is generally
thought to be primarily a political issue who controls the television
stations. The delicate negotiations between wealthy individuals and the
government over that question are not thought too banal for explicit comment.
The connection between Silvio Berlusconi's ownership of television stations
and his political activities was generally made the subject of pasquinade in
Italy, at least elsewhere than on his stations. Educated readers among the
tiny minority of Americans who were able to acquire meaningful information
concerning the Telecommunications Act would consider its long-term political
significance both obvious and central to any intelligent discussion had it
happened, say, in France, Israel, or Serbia. But those questions do not seem
to have been of paramount interest to the lawyers whose essays you have read.
Not that political economy is a subject on which they are silent. You have
hardly read anything else. But it has been mostly political economy without
cultural history, as though in analyzing how consent is obtained for systemic
changes that redistribute wealth and power one need not look beyond the theory
of the firm, mechanical analysis of material incentives, and a gross equation
of increase in aggregate output with social progress. Not even Marx and
Engels are such staunch historical materialists.4

I should be clear at this point that I have no intention to accuse anyone
of anything. Heaven knows that the distinguished scholars whose work you have
been reading are not Marxists. Nor has anyone intended to hide the crude
political realities of a process whose results she or he broadly approves.
The scholarship's rather indifferent attitude towards the larger political
issues reveals a more subtle problem. We have ruled out of our minds certain
issues, ranges of outcomes, possible modes of organization. Those decisions
are so broadly accepted among the "chattering classes," particularly those
whose chattering is sponsored, that the mechanisms by which the alternatives
are ruled undiscussable are themselves considered unworthy of
investigation.

These unarticulated assumptions are buried in the language, flying too low
for our radar. The metaphors in which this symposium's participants express
themselves are those in which we have all been speaking in the last several
years. Beneath the surface of this apparently analytical rhetoric, so
glittering and self-confident, are the realities, burning away unaffected.

3. A Few Straws in the Wind

So let us take a few of those metaphors. Let us try to locate the ways in
which the metaphors themselves constrain our imaginations, remove potential
objectives, obscure the perception of political contingencies. Then, perhaps,
we will be able to frame questions that would broaden the incidence of
scholarship.

A. The Super Highway

The railroads are the great public highways of the world, along which its
gigantic currents of trade and travel continually pour. ... They are the
most marvelous invention of modern times. ... There is scarcely a want,
wish, or aspiration of the human heart which they do not in some measure
help to gratify.5

Here we are on familiar cultural ground again; our Great Barbecue too has been
constantly advertised in these terms. When did the phrase "the information
superhighway" become ubiquitous for denoting the full range of the new digital
communications technology? By 1995 its presence was being widely deplored by
those whose sensitivities to cliche are well-developed,6 but I don't believe I ever saw it criticized
for its pervasive political content.

It is naturally superfluous to point out that American culture glorifies
the road. Identifying one's product or proposal with the image of the open
road is a sure bet among our most adept cultural promoters. But the vision of
the "highway" has more than undifferentiated positive appeal. The highway is
the domain of individualism, the medium of physical liberty, the antithesis of
community. The highway is also, as Justice Byron Paine's paean to the
railroad reminds us, primarily a pathway of commerce.

Did the widespread metaphor of the highway constrain our processes of
thought, reframing our questions about the Telecommunications Act? Suppose
instead that, beginning in the early 1990s, we had all referred to the new
telecommunications technology as "the Universal Education System." This would
have captured a different range of meanings, neither more nor less correct as
a characterization of the new technology. But the shift of metaphor would
surely have affected the political climate. Whether to turn the public
schools over to private profit-making organizations seeking advertising
opportunities is still a controversial question in the United States at this
hour, so far as I know. If legislation for that purpose were pending in
Congress while media companies and others with an interest in the outcome were
pouring money into the war chests of candidates, issues of social justice and
democracy would probably be raised, and lawyers analyzing the outcome might be
more inclined to discuss the larger political implications.

No doubt there are interesting problems best identified by thinking of the
new communications technology as analogous to other systems for transporting
goods. Such an approach encourages concerns with efficiency and security of
carriage, application of competition law, relations with the regulatory
agencies, interactions with general commercial law. That metaphor, in short,
facilitates asking the questions asked by the participants in this symposium.
The metaphor of goods carriage also assists one in assuming that the things
carried are the property of the shipper, objects in the process of sale. Such
an implicit support for the continuance of traditional intellectual property
law is an invaluable subsidy to those who profit by the non-reform of these
antiquated doctrines.

But the metaphor obscures other questions that become identifiable when the
technology is thought of as the system of universal education. Immediately,
inquiry is led to issues of equality of access, locus of editorial control,
development of the labor force, and the relevance of the technology to the
actual conduct of electoral politics. The issue of equal access, for one, is
raised in the preceding essays; I don't mean to suggest that metaphors so
rigidly control our thinking that nothing can be perceived unless the
ideological frame predisposes one to see it. But this is merely one of the
forms in which the vocabulary and imagery of scholarship has worked to
underemphasize the political redistribution in progress.

B. The Broadcaster-Consumer Model

Most of the essays in this volume share a set of categories for dividing the
convergent systems of interpersonal communication. The categories employed
are a familiar component of the larger social discussion of telecommunications
"reform." They have an implicit political content which the scholarship tends
uncritically to accept.

The basic distinction usually made, and made in the essays you have read,
is between "telephony" and "broadcast." Switched communications between peers
are conceived as private, but everything else tends to be seen as the purview
of broadcast. This dichotomy expresses an unarticulated intention to cast the
information society in an industrial mold. We can all call Aunt Sally, but
only a few of us are "broadcasters," industrial producers of signal, which all
the rest of us merely consume.

This is a metaphor only. As a metaphor it captures some aspects of the
reality it describes. But one of the most important properties of the new
technology is to eliminate the previously high cost of reaching a large
audience. Any individual can reach through the use of network media such as
the World Wide Web an audience far larger than the owner of several small
television stations, and at no cost. The form of communication achieved is no
doubt different, and it is obvious that the individual UseNet news post has
not achieved parity with a television advertisement for an athletic shoe. But
the metaphor of the broadcaster and the consumer conditions us to accept the
maximum possible inequality as a natural necessity: a few talk and the rest
merely listen. Spectrum need not be allocated around this conception; the
historical justifications for doing so are among the forms of reasoning
vitiated by the rise of complementary carriage technologies and the resulting
death of "scarcity rationales."

Naturally the broadcaster model is favored by those whose economic
interests it favors in turn. The broadcasters and the politicians have each
something to offer the other, and both parties eschew thoughtways that would
reduce the value of what they have to trade. That's how barbecue guest lists
are made. But scholarship has a duty to transcend such self-serving
limitations of discussion.

To be sure, broadcasters have been seen, much like railroads, as
"businesses affected with a public interest." This view arose, as with the
railroads themselves, only in small part because they have been built on
public real estate. At bottom, I think we can all agree, they are so
"affected" because they have become essential social facilities. So far as
broadcasters are concerned, the public interest is that they are the primary
news distribution system for all but a few. Broadcasters through most of the
period since 1934 responded to this perception of a public interest affecting
their business by trying occasionally to act like journalists. The presence
of a money-losing news department dignified a television network. It was
taken to constitute some sort of guarantee that the network understood its own
importance, and intended to respond benevolently to those who were dependent
on it. Privilege begat noblesse oblige.

Broadcasters waxed publicly proud of their role. The First Amendment
seemed to them to mean that Congress shouldn't mess with the people's right to
speak, or with their right to be the press. The people have some rights, and
"the press" has others. Like the distinction between "telephony" and
"broadcast," come to think of it. Metaphor structures conception.

And what of the alternatives? The technological changes we experience
could tend towards the reduction or elision of the distinction between
broadcasters and consumers. Like the "Universal Education System," an
alternate metaphor of "Every Person Her Own Producer" would capture a
different but no less true aspect of technological possibility.

If we are one generation away from a society where everyone can feasibly
contribute to informing the people and debating the issues without mediation,
is this a good time to confirm and expand the award of free communications
privileges conveying enormous unequal advantage to a few individuals and
organizations? Is it relevant that those holding the privileges then sell to
politicians the communications advantages awarded to them, as well as donating
money to the campaigns and personal fortunes of the legislators? These
questions might seem relevant; trying to answer them will lead one straight to
the barbecue. But the metaphor of the broadcaster, uncritically accepted,
makes the questions seem less important to ask. After all, thus it has always
been. Why should tomorrow be different? Besides, we all hope Rupert Murdoch
will contribute to the Cyberlaw Center we would like to build at our law
school. The rather oppressive embrace of the consumer by the broadcaster has
truly carried us, haplessly, into "The Sponsored Life."7

C. The Market for Eyeballs

This graceful metaphor, seemingly a fugitive from the repertoire of bioethics
hypotheticals, is frequently heard in scholarly conversation about the
Telecommunications Act, as it was in this symposium, though it appears more
seldom on the page. The basic idea it expresses has become conventional.
Deregulating the market for eyeballs, allowing components of the
telecommunications industry access to one another's core businesses for the
presentation of consumers to advertisers, is one of the legislative
innovations frequently praised by other symposium participants, with or
without reference to the illuminating metaphor.

Again there are political assumptions buried inarticulate in the metaphor,
ones which scholarship should devote itself to recognizing and subjecting to
critique. There is, first, the amplification of the broadcaster-consumer
model. The consumer, in this metaphor, is further reduced to a passive
receptor, an eyeball, whose sole function is to take cognizance of
advertising. But the passivity described in this metaphor does more than
parallel the assumption underlying the division of the world into broadcasters
and consumers. More generally, it supports a bias in favor of "push" over
"pull" media. Once we have been characterized as eyeballs rather than active
intelligences, after all, media designed to force images and information at
us, rather than responding to our requests, seem perfectly natural. The model
of "consumer choice" (another metaphor that would repay recursive analysis)
becomes the television remote control. Call it, to maintain the anatomical
theme, "the market for eyeballs and forefingers."

Once unpacked, the idea of the market for eyeballs reminds us that the
ultimate resource being tapped by the "liberalized" or deregulated
communications enterprises is human attention. The environment in which most
people live and work is dominated by communications artifacts, from the
television that consumes hours of every average American day to the networked
computer that constitutes the center of an increasing proportion of work
lives. Those artifacts both engage our attention and coerce it. The rules
that determine how content is allocated among those carriers are to a
remarkable extent constitutive of the fabric of our lives. In this context,
the "market for eyeballs" metaphor signifies and justifies rules that turn
over this basic texture of our lives to the competitive hum of instructions to
consume.

No metaphor is either so strong as to determine, or so profound as to
capture, the strangeness of this relentless American desire to offer up the
most intimate structures of consciousness to commercial exploitation.
Friendly software built into your Microsoft operating system will soon contain
"push" technology to show you forty unsolicited advertisements an hour on the
computer in your office,8 while the
commercial video feed in your child's school mingles "news" about the latest
Disney movie to be discussed in English class with a juice advertisement your
child's peers wrote in order to win the scholarship that makes it possible to
go to a better school.9 The cultural
historians of the future will cast about in the printed detritus of our time
for a sufficiently arresting image of how we rushed to use the new technology
to smother the quiet uniqueness of our inner lives beneath the roar of
advertising bilge. One or more particularly insightful writers will, I
predict, seize on the quaintness of that expression of 1996, when the whole
thing began: "the market for eyeballs." Says it all, don't you think?

4. Picking the Bones

What troubles and disappoints me, then, about the contributions to this
symposium is the thinness of the political and cultural description they offer
of the fateful moment through which we have just passed. Their language of
description--the jargon of lawyers' political economy--both implies and seems
to enjoin political passivity. It relegates us to the role of "consumer,"
reifies the "broadcaster" as a social power in the future as well as the past,
and celebrates as though unproblematic the dominance of commerce and
entertainment over education and political mobilization as uses of the new
media. The language itself embodies the assumptions and exclusions the
legislation furthered. The legislation, as I have suggested, was the outcome
of political finagling on a scale of rapacity and flagrant corruption unseen
in America for well over a century. And if the language of our scholarship
reproduces the statute's cultural assumptions, is our scholarship so tainted
as well?

It is hard, on the basis of the papers one reads here, to be optimistic.
The authors have not asked how the Telecommunications Act could have
strengthened the hard-pressed American educational system at the expense of
the muck merchants. They have not asked how the intellectual passivity
encouraged by our beloved broadcasters could be reversed by the design of new
media, and how those new media--rather than presently existing commercial
television--could have been fostered by a different Act. They have not
critiqued the biased and partial metaphors of "the superhighway," "consumer
choice," or "the market for eyeballs." They have not even asked, by and
large, whether the Telecommunications Act made the relations between corporate
wealth and electoral politics more unhealthy than they were before. They have
treated political economy as though it were not, even in part, about how
culture secures the power of the few over the many.

But in 1996 our culture was auctioned off, probably for at least one
generation, to those who had the money to buy our politics. The buyers'
resulting measure of control over the way we think will pay them swingeing and
unjust dividends, which they will use to corrupt our politics further. The
writers who have participated in this symposium have had fine seats at this
greatest of barbecues; they were there from the slaughtering to the final
greasy slurp. Yet they have returned from the feast to tell us that they were
unable to smell the smoke, or to see the carcasses of future opportunity that
have vanished down the gullets of our new Robber Barons. Their bewilderment
would probably amuse us, and cause some rumination on the quality of the
whiskey and cigars, were it not so likely that the aftereffects of this
barbecue would resemble those of the last:

Suspicious commoners with better eyes than manners discovered the favoritism
of the waiters and drew attention to the difference between their own meager
helpings and the heaped-up plates of more favored guests. It appeared
indeed that there was gross discrimination in the service. ... Then at last
came the reckoning. When the bill was sent in to the American people the
farmers discovered that they had been put off with the giblets while the
capitalists were consuming the turkey. They learned that they were no match
at a barbecue for more voracious guests, and as they went home unsatisfied,
a sullen anger burned in their hearts that was to express itself later in
fierce agrarian revolts.10

* Professor of Law and Legal History, Columbia University
Law School. I want to thank the editors of the Columbia Law Review for their
invitation to contribute this essay to the proceedings of the Symposium,
Telecommunications Law: Unscrambling the Signals, Unbundling the Law.
An earlier version of this essay appeared under the same title in 97 Columbia
L. Rev. 945-54 (1997).

1. The era of federal giveaways to industrial
capitalism was first described as "the Great Barbecue" by Vernon Parrington,
in the uncompleted final volume of Main Currents in American Thought.
See Vernon L. Parrington, Beginnings of Critical Realism in America:
1860-1920, at 23-26 (1958). For the most recent scholarship describing
the events narrated, and collecting the relevant primary and secondary
sources, see Eric Foner, Reconstruction: America's Unfinished Revolution,
1866-1877, at 465-69, 566-69, 575-79. The complex interrelation between
the Texas & Pacific railroad project and the maneuvering to decide the
disputed Presidential election of 1876 in favor of Rutherford Hayes rather
than Samuel Tilden was the subject of C. Vann Woodward's classic Reunion
and Reaction: The Compromise of 1877 and the End of Reconstruction
(1966).

2. See David Streitfeld, $4 Million Book Deal for
Gingrich: Political Opponents Decry Windfall from Murdoch Firm, Wash. Post,
Dec. 22, 1994, at A1.

3. Within days of Robert Dole's resignation from the
Senate in June 1996, the new Republican leadership of the Senate joined with
Newt Gingrich to demand that the FCC issue free licenses for additional
broadcasting spectrum, ultimately intended, at least purportedly, for HDTV
broadcasting. Their letter instructed the Commission to issue such licenses
as rapidly as possible, and only to existing licensed television broadcasters,
precluding any new competition in the television frequencies. See Joel
Brinkley, Congress Asks F.C.C. to Begin Lending Channels for Digital TV
Broadcasts, N.Y. Times, June 24, 1996, at D6. On December 24, 1996, the
Commission adaopted a technical standard for high-definition television
broadcast in the United States. See FCC Action Clear Way for Digital
Television: Panel Endorses Video Format; New TVs Likely to Hit Market by 1998,
Baltimore Sun, Dec. 27, 1996, at 2D. As of this date, the Commission has not
required broadcasters to use the newly conveyed spectrum for HDTV service, and
the outgoing Chairman, Reed Hundt, has testified before Congress against such
a requirement.

4. As a result, Marxisé social theorists have
had no trouble in perceiving the cultural and political significance of the
Great Barbecue. See, for example, Barrington Moore, Social Origins of
Dictatorship and Democracy, 149-55.

6. See, e.g., Martin Peretz, Cambridge Diarist: Al
Pal, New Republic, Feb. 17, 1995, at 42 ("What Gore first defined as the
information superhighway is already a cliche, not because it is banal but
because it is so powerful.")

7. The phrase comes from the title of Leslie Savan's
perceptive book The Sponsored Life: Ads, TV, and American Culture
(1994).